What Types of Cases Does Surrogate’s Court Handle?

The Surrogate’s Court handles all matters relating to wills, estates and property of deceased persons. It also shares authority with the Family Court to hear certain adoption proceedings. Lastly, it processes guardianship applications for infants and mentally retarded/developmentally disabled people’s person and property.

Some common proceedings are:

1. Probate: The process by which a will is proved to the satisfaction of the Surrogate to be the valid Last Will and Testament of the decedent.

2. Administration: A procedure for collecting and distributing assets of a person who died without a Will.

3. Voluntary Administration: A simple and inexpensive method of administering an estate of a deceased person where personal assets in the decedent’s name alone do not exceed $20,000.

4. Guardianship: See attached sheet.

5. Adoptions: See attached sheet.

What is a Will?

A Will is a written declaration of what a person wants done with his or her property upon his or her death. A person who dies leaving a Will is said to die “testate” . The law requires certain formalities for a Will to be valid.

It allows for a transfer of both personal property (e.g. bank accounts, furniture, stocks, clothing) and real estate which exist in the decedent’s name alone.

It allows a person to name someone she trusts to be an executor of her estate and guardian over her children. It also can provide protection for family members, for example, trusts for adult incompetent children, “sprinkling” trusts for minor grandchildren where a trustee has discretion to distribute income according to need.

What if a person dies without leaving a Will?

A person who dies without a Will is said to die “intestate”.

Since the deceased person left no direction on how to dispose of his/her assets, New York law provides for who will inherit in his/her estate as it assumes he/she would have wanted: e.g., spouse and children: $50,000 plus one-half balance to spouse, remainder to children.

Do I Need an Attorney?

Estate proceedings can range from the relatively simple to the extremely complex. Because in many cases it may be impossible at the beginning of the process to foresee what questions or issues may arise, it is generally advisable to seek the assistance of counsel. Surrogate’s Court has a legal staff which reviews legal documents submitted to the Court, but staff is prohibited by law from giving legal advice to parties.

Is There Any Assistance Provided by the Court in an Estate Matter?

When a person dies leaving personal assets under $20,000 in value, the Court will assist in the processing of a “small estate” proceeding (voluntary administration). The filing fee is only $1.00.

What Other Services are Provided by the Court?

Erie County Surrogate’s Court has a fire-proof vault where you can store your Will “for safekeeping”. It is a free service and offers the advantage that the Will can be easily located upon a person’s death. It is also completely confidential. If you decide to change your Will, the Court will only release the Will to you, or to another individual upon your notarized authorization. No one can even be informed as to whether you have a Will on file.

What Kinds of Guardianship Proceedings Does Surrogate’s Court Process?

The Surrogate’s Court processes the following:

1. Guardianship over an infant’s (child under 18 years of age) “person”. A guardian is usually a family member who is granted authority to care for and make certain decisions for her. Some examples are: enrolling a child in school, medical care for her, and securing government assistance, e.g., food stamps.
2. Guardianship over an infant’s “property”. Whenever a child receives money through inheritance in an estate, or through insurance when someone dies, or as a result of a settlement if the child herself is injured, someone must be formally appointed by the Court to safeguard these funds until the child becomes 18. Usually, a parent (the child’s “natural guardian”) is the person appointed “legal guardian” over these funds. The money is deposited in a local bank under joint control with the Court’s guardianship department. No money can be withdrawn from this account without approval of the Court.
3. Guardianship over a mentally-retarded or a developmentally disabled individual’s person and/or property. Persons who are certified by at least two doctors as being unable to care for themselves because of mental retardation or a developmental disability can have a guardian appointed by the Court to make decisions on their behalf.
4. Surrogate’s Court occasionally also handles Mental Hygiene Law Article 81 guardianships, which more frequently are processed in State Supreme Court. They are for persons who at some point in life are not able to care for some aspect of their person and/or property.

Do I Need an Attorney?

Most commonly, these proceedings are processed by people on the papers submitted to the Court, without the necessity of a formal hearing. If the application is opposed by someone, you may need an attorney to help you. Keep in mind, however, that this is a serious legal proceeding, and it is always advisable to know your rights and duties before filing. Therefore, a consultation with an attorney ahead of time would be suggested.

Attorneys are generally needed for the guardianship of mentally retarded and developmentally disabled person’s proceedings due to the complexity of the paperwork and the requirement of a Court hearing.

How Do I Begin the Process?

Forms are available at the Guardianship Office for parties to prepare themselves and to have signatures notarized, e.g., at a local bank. Filing fees are $20, and $6 for certificates once the application is finalized.

If a withdrawal of funds from the bank is necessary for the child’s medical or educational needs (and sometimes for the child’s support or clothing necessities), forms are also available through this department. The Court reviews the appropriateness of these applications, keeping in mind that the primary purpose is to safeguard the child’s money until she reaches full age at 18.

Article 17a SCPA Guardianships
for Mentally Retarded and Developmentally Disabled Persons

The Surrogate’s Court is authorized to entertain proceedings to appoint a guardian of the person or the property or both for persons who are determined to be mentally retarded or developmentally disabled. This proceeding is usually initiated when the disabled person attains the age of 18 years or older.

The proceeding requires medical statements certified by one licensed physician and one licensed psychologist or by two licensed physicians who have knowledge about the individual and his condition and disabilities.

The law requires that certain relatives such as parents, adult children, adult siblings be served with notice of the proceeding and other persons or agencies as the law or the Court shall determine to be necessary and interested parties.

In the event that health care decision authority is recommended by the physician’s report, such relief must be included in the petition and may be granted by the Court to the guardian. Such health care decision authority may include decisions to withhold or withdraw life sustaining treatment and special procedures as required by law must be followed.

The guardianship proceeding is usually scheduled for a court appearance at 9:00 a.m. and is conducted privately in the office of the Chief Clerk of the Court or the Judge’s Chambers rather than the Courtroom. Unless the medical report states otherwise, the appearance of the individual and the proposed guardian is required. The filing fee costs are $20 for the petition and $6 for each certificate of guardianship that is purchased. The proceeding requires notification to the New York State Office of Child and Family Services, which conducts a search of its records to determine whether any “indicated reports” of child abuse, child mistreatment, or neglect have been filed against the proposed guardians. No decree awarding letters of guardianship may be approved until the Court has received a reply from this Department.

In almost all cases, the parties are represented by counsel. Legal fees usually have ranged between $200 and $1,500, depending on the complexity of the matter and the attorney’s fee rate. General information on these proceedings is available from the New York State Commission on Quality of Care at 1-800-624-4143.

What Kind of Adoptions Does Surrogate’s Court Process?

The Surrogate’s Court processes the following:

1. Infant adoptions: These are strictly private adoptions; meaning the infant is transferred directly from the hospital at birth to the adoptive parent(s). The term "Foster Care" usually designates an actual foster care situation which would be handled by Erie County Family Court in Erie County. In a private adoption the adoptive parent(s) are also responsible for the attorney fees of the birth mother as well as any unpaid medical expenses.
2. Step/Parent or Remarriage Adoptions: This is when the new partner or spouse is now adopting with the birth parent or prior adoptive parent (who adopted as a single parent).
3. Family Adoptions: Usually referring to Grandparent(s) adoptions.
4. Adult: Adoptee is over the age of 18 years.
5. Foreign: All foreign countries are now finalizing adoptions prior to the new parents and children returning to the U.S. Although not mandatory, it is advisable to do a re-adoption here to have a U.S. birth certificate issued as well as an added protection.

All of the above, with the exception of an Adult Adoption, must have home studies done. The court will assign a "disinterested person" to conduct the home study and this is used as the basis for finalization. Foreign home studies must be conducted by either a Certified Social Worker or an agency. The homestudy fees are paid for by the adoptive parents.

Do I Need an Attorney?

An attorney is necessary on all adoptions except that there may be a waiver of attorney granted for Adult and Foreign Adoptions. Having an attorney in any proceeding always provides extra security.

How Do I Begin an Adoption Proceeding?

You can begin by contacting an attorney. If you do not know where or how to begin, you may call the court and although we cannot refer one to you, we can give you some names and you may choose your own.

How Do I Find a Baby?

Unfortunately we only process the adoptions, we do not arrange them. All adoptions will go through your attorney.

I Was Adopted, How Can I Get My Paperwork?

All New York State Adoptions are sealed files. There is no statute of limitations on the age. There is the Adoption Registry in Albany which allows the adoptive child to receive non-identifying information. It also allows the birth parents the opportunity to also register so there would be a chance that they will be matched and with consent from each side, can contact each other. The telephone number for the Registry is (518) 474-9168.